Onu Mazi Onowu Anthony Obiagbaso Enukeme V. Didacus (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Abia State High Court, in suit No. A/M83/2011, delivered by Hon. Justice T.U. Uzokwe on 9/5/2012, wherein the learned trial Court entered judgment for the Applicant (now Respondent), as follows:

(a) It is hereby declared that the Applicant is entitled to be heard by a court of competent jurisdiction, having been served with the statutorily required Notices to quit and seven days Notice of Owners Intention to apply to recover possession of the space occupied by him.

(b) It is also declared that the Applicant’s Rights is likely to be infringed should the Respondent use self help method to eject him from stand B6 space presently occupied by for which the Respondent have (sic) issued him statutory Notices.

(c) The Respondents, their agents, assigns, privies, servant, executors etc. are hereby restrained from resort to self help in ejecting the Applicant from the said space until the final determination of the recovery of possession matter in a court or competent jurisdiction.

(d) The Applicant is entitled to the cost of this suit which I assess at N10,000.00.”

Before the decision, Appellant (as Respondent at the court below) had filed a preliminary objection to the suit on 1/7/2011, saying that the originating application by the Respondent did not include “Statement” which Order 11 Rule 3 of Fundamental Rights (Enforcement Procedure) Rules, 2009, stipulates to be part of the originating process of application to enforce fundamental rights, and praying that the suit be struck out for incompetence. The Appellant also filed a counter affidavit to the action and also raised the defect, highlighted above.

On being served with the motion on notice of the preliminary objection, the Respondent filed application to amend the originating process on 8/7/201, saying that the “statement” was inadvertently omitted at the coupling of the processes when filing the originating processes on 6/6/2011. Ruling on the two applications (that is, to strike out the suit for the defect or to cure the defect, by the application to amend), the trial court held:

“A careful perusal of the statement shows that it was indeed filed along with the other processes on the 6/6/2011 and the appropriate fees paid. I have no option therefore but to grant Applicant’s application for the order of this court to deem service of his statement filed along with other processes in this suit as properly filed and served, the appropriate fees having been paid.” Page 84 of the Records

That ruling was taken together with the final Ruling on the main suit. Appellant’s appeal is against the whole decision of the trial court.

See the Notice of Appeal on pages 89 to 94 of the Records of Appeal, filed on 2/8/2012, which disclosed 5 grounds of appeal. Appellant filed his Brief of Argument on 25/9/12 and distilled four issues for determination, as follows:

“(1) Whether, having regard to the provisions of Order 11 Rule 3 and Order iv Rule 1 of the Fundamental Rights (Enforcement procedure) Rules, 2009, the Court below was right when it entered judgment in favour of the Respondent and awarded cost of N10,000.00 against the Appellant, based on the Respondent Originating Application dated 6th June, 2011 for the enforcement of his Fundamental Right, notwithstanding the Appellant’s Notice of Objection and the Findings of the same court that no “Statement” was filed by the Respondent in support of the Originating Application. (Grounds 1 and 5)

(2) Whether the Court below was right when it never gave Ruling on the Appellant’s Motion on Notice dated 1st July 2011, which raised preliminary objection to the Respondent’s Originating Application and whether the Court below was right when it granted the Respondent’s Motion filed on 8th July 2011, which was improperly constituted, in place of the Appellant’s said Motion on Notice for Preliminary Objection. (Ground 2)

(3) Whether the Appellant’s right to fair hearing was not breached when the trial court granted the Respondent’s Motion on Notice dated 8th July, 2011 deeming the service of the Respondent’s detached “Statement” on the Appellant regular in the course of delivering judgment in this suit and proceeded (sic) the same time to deliver judgment in favour of the Respondent by relying on the same “Statement” without giving the Appellant the opportunity to respond to the new processes deemed to have been served on the Appellant in the course of delivering judgment. (Ground 3)